Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
valid retention of title according to A, the Member State of importation
is obliged to recognize the retention of title, but may and usually will apply
its law to the effects of the retention of title.
C. In essence, the same rules as under A and B apply to security rights
in movable goods other than retention of title. This holds true, although
there is no binding obligation under Community law. However, existing
practice may be based upon the generally recognized basic principle of lex
rei sitae and the legal consequences of a change of the situs.
D. In my view, the preceding three principles should not apply to security
rights of any kind created in a motor vehicle registered in another Member
State. Looking at the factual objects of the decisions reviewed above,
one sees that in almost a dozen cases security rights created in the state of
registration of a vehicle were involved. However, this fact was disregarded;
instead, the law of the present physical location of the car was applied:
namely, the law of a station in a mere transit. 53 Nevertheless, this exception
should be construed narrowly. It would not apply, for instance, to the
importation of a car 54 or to the frequent instances of theft if the thieves
moved the stolen car to another country. 55
8.5. Conclusion
In summary, the accessible judicial practice in the ‘old’ Member States in
Central, Northern, and Southern Europe does not disclose the necessity
of an intervention by the European legislator – except for one narrow
fact pattern: security rights in motor vehicles in transit should as a rule be
subject to the law of the country in which the vehicle is registered.
Whether the preceding conclusion also holds true for the new Member
States in Central, Eastern, and South-Eastern Europe would require separate
investigation. Since one cannot yet expect legal certainty from court
practice in these countries, specific legislation in the field of the conflict
of laws may be necessary.
53
Cf. supra n. 36 (four cases), 39-42, 46, 47, and 51.
54
Cf. supra at n. 42.
55
Cf. supra at n. 41.
184
Ulrich Drobnig
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